Posted
by
kdawsonon Tuesday November 10, 2009 @09:09AM
from the feeling-bilski dept.

Trepidity writes "The US Supreme Court held oral argument Monday in Bilski, a business-methods patent case that might also have important implications for software patents (We have previously discussedthe caseseveral times). The tone of the argument appears to be good news, as the justices were very skeptical of the broad patentability claims. They even brought up a parade of absurd hypothetical patents quite similar to the ones Slashdotters tend to mention in these kinds of debates. Roberts surmised that 'buy low, sell high' might be a patentable business method, Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep, and Scalia brought up the old-time radio soap opera Lorenzo Jones, featuring a hare-brained inventor with delusions of getting rich." Patently O has good blow-by-blow coverage of the day's proceedings. Official argument transcripts will be up soon, they say.

I'm two steps ahead of these guys. I already have a patent on making a patent on making a patent on making a parade of patents in a patent lawsuit, then I patented the process. That makes me good for the next 3 iterations of suggested slashdot patents.

the process of creating obfuscated reports about client billing practices intended to hide nickel-and-diming the customer to death. That would be a shot across the bow of lawyers, doctors, contractors and the banking industry in one fell swoop! Imagine the lobbying then to get rid of business method patents!

**************MR. STEWART: Well, first of all the only ruling that we're -- backtrack a bit,to say, we oppose, sir, in this case because we recognize that there aredifficult problems out there in terms of patentability of software innovationsand medical diagnostics.

JUSTICE KENNEDY: You thought we -- you thought we would mess it up.

MR. STEWART: I didn't think --

(Laughter.)

MR. STEWART: We didn't think the Court would mess it up. We thought that thiscase would provide an unsuitable vehicle for resolving the hard questionsbecause the case doesn't involve computer software or medical diagnostictechniques, and therefore, we thought the Court would arrive at the positionthat I think, at least some members are feeling that you have arrived at, thatyou will decide this case, and most of the hard questions remain unresolved.And, frankly, we think that's true.*******************

Can someone explain to me:

1. Why the govt. does not want to resolve the mess that is software patents, nowthat a golden opportunity has been presented?

2. Why is it the job of the govt. deputy solicitor to uphold the politicalinterests of the US of A rather than the legality of the issue at hand? (thereis an opinion here that software patents help the USA in World Trade.... whichseems very dubious to me at any rate).

3. How is it technically feasible, if at all, to make a ruling on the BusinessMethods case without influencing whether software can or cannot be patented?

I think the govt. (read deputy solicitor) seems very worried that many lawyersand patent powerhouses would come crashing down as a result of this ruling.

1) Who says they don't? They may have more immediate issues to attend to, however. Of course, they may also not feel they are a 'mess', as you do.

2) Sometimes people worry about more than just their immediate job. Even if his job is only to worry about the legal aspects, that doesn't mean he -has- to ignore all the political and economic aspects of the issue.

3) Software patents are not business method patents, no matter how they were born. They have become separate issues. It's possible they could be linked and come down together, but it's also possible that the link will sever and software patents will have to be dealt with separately.

They appeared linked at the oral argument, though. Roberts in particular suggested that if they struck down business-method patents but kept software patents, then companies could just implement their business method in some sort of business software, and patent it that way, rendering the fix pointless.

It is? Hmmm. I can not lay my hand on any part of the People's Constitution that grants the United States the power to uphold business interests rather than obey the law. On the contrary the Supreme Law says that power, if it exists, belongs to the State Legislatures.

First, no, that's why I said what I said. Second, wtf? I go trolling intentionally and get modded insightful. I state an honest, if cynical, opinion and get trolled? I'm starting to hate this site, it's dominated by fucking morons. Yes, THAT was a troll. Do your worst, assholes.

You're equating a passage that limits federal power with one that grants federal power. That is a dangerous slope, particularly in light of the ninth and tenth amendments.

Besides, the purpose of those so-called preambles are different, as evidenced by the language used.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

The binding statement here is the right of "the People" to bear arms. The preamble can easily be read as a rationale. Note which part stands on it's own as a complete sentence (or more precisely, a complete thought).

The Congress shall have power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This, which you have termed a preamble, is the actual statement. It stands on its own as a complete sentence, and has the copyright portion tacked onto it. Promoting the progress of Science and useful Arts IS THE ENUMERATED POWER. The ability to grant copyrights and patents is a constitutional vehicle granted to them to carry out their responsibility.

Otherwise it would have been phrased:

The Congress shall have power... to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries, promoting the Progress of Science and useful Arts.

Or:

The promotion of the Progress of Science and useful Arts being necessary for the general welfare, the Congress shall have power to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Further note that none of the other powers enumerated in the section contain rationale. If you insist on treating the passage as an explanatory preamble, you must wonder why the framers of the Constitution felt that that one required it. The others didn't.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

The binding statement here is the right of "the People" to bear arms. The preamble can easily be read as a rationale. Note which part stands on it's own as a complete sentence (or more precisely, a complete thought).

That's kind of an awkward example, because we have extensive written documentation of the exact intent of the specific wording of the 2nd Amd, and the first half is actually more than just an explanatory preamble. When the Bill of Rights was being drafted, everyone agreed that enumerating the right of individuals to bear arms in defense of liberty was essential (seeing as how they had just won a war based on being armed and ready to shoot at their legitimate government) but representatives of various states had additional concerns. Primarily, they were concerned that the individual right to bear arms was useless unless the people were guaranteed the right to form local militias, and the federal government would render individual arms useless by forbidding any cooperation except under auspices of a federal military. That's why the 2nd has two clauses.

In a nutshell, the second amendment says: The people retain the right to own guns and form crowds of armed people to do the things that we sometimes need crowds of armed people for, and they don't need federal permission.

Of course, the clearly delineated intent of the original framers is generally ignored, so... whatever.

So long as it "Promotes the progress of Science and useful Arts", to which, I will respond that it largely doesn't these days the way it's being done.

The Supreme Court has traditionally interpreted preambles like "promote the general Welfare" and "promote the Progress of Science and useful Arts" as illustrative and not limitative, much like the list of purposes in the fair use statute (17 USC 107), and deferred to the Congress on their interpretation. Or at least that's the impression I got from the Court's opinion in Eldred v. Ashcroft.

It is? Hmmm. I can not lay my hand on any part of the People's Constitution that grants the United States the power to uphold business interests rather than obey the law.

The solicitor is arguing that the law DOES allow for business method patents. He may be wrong, but he's not trying to break the law. He's trying to get the Supreme Court to clarify that the law does indeed allow them. His opponent is doing the opposite. That's how it's supposed to work.

I think you read too much into that exchange. A short while ago the Washington D.C. gun ban fell after having stood for over 3 decades. Why did it take so long? Because the pro-gun lobby was waiting for a case that was favorable to their cause. They didn't want to bring just any case - they wanted the "perfect" case where they could be certain of the outcome (i.e. SCOTUS sides with the gun owner).

I think Mr. Stewart is following the same thought process when he says, "We thought that this case would provide an unsuitable vehicle..." He would have rather waited for a later case where the outcome would be in his favor (pro-patent rights). Instead he got this one.

I'm not home and can't refer to my research at the moment or I'd be happy to do it for you, but feel free to do some googling for yourself. You won't have to search long to find the cites you seek.

If you dig deep enough, you'll find a lovely quote that accuses the NRA of not wanting to move forward until they can find a "minority lesbian female combat-disabled vet with HIV" complainant. Clued-in gun owners all over the U.S. got tired a long time ago with NRA foot-dragging in these matters. After all, the

The discussion has digressed into the mess of software patents which is purely a distraction from the arguement.

Some software patents are really business method patents (how someone navigates this page, or which button they press). Some software patents *may be* technological patents and should be measured as such. Blanketing software patents by comparing them to business method patents is comparing apples and oranges. Whether or not the non-business-method software patents (technological patents in software) should be allowed is a completely separate issue but people tend to discuss them under one arguement when it is really two arguements. If your software algorithm can pass the test of patent-eligibility then it should be patentable. I am not saying it is even possible to have something in software that is patentable but with more of our world moving into the realm of invention through transformation of data I am not going to say it is impossible either. Ask yourself this, would you consider a device that allows the teleportation of objects to be a patentable invention? Would you feel the same way if 100% of the actual work was driven by the software running the system? Which is the technology, the arrangement of hardware that made it possible (based on a hundred years of prior art) or the computation done by the software that drives it.... just sayin.

The patent system was invented to promote the technology and arts. It is not about business methods. If Bilski loses, its set the tone for the invalidation of all business patents, thousands of patents could be invalidated. This is why this is even a case to begin with (many companies stand to lose a lot if Bilski loses).

2. Why is it the job of the govt. deputy solicitor to uphold the political interests of the US of A rather than the legality of the issue at hand? (there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).

The solicitor general's job is to argue the political interests of the USA before the Supreme Court and and be an advocate for a particular position that the court has to rule on. Though the Solicitor General can practice "confession of judgement" (which means to drop a case if he considers the government's official position to be unjust) it's much more normal for the Solicitor General to play devil's advocate and argue the position and let the court create precedent.

1. Why the govt. does not want to resolve the mess that is software patents, now
that a golden opportunity has been presented?

The Bilski application was on a method of managing risk in derivative markets. While it could be done in software, there was nothing in the claims that even mentioned a computer or software. So this isn't a "golden opportunity", even on the Government's side. It'd be as golden as an application on a method of diagnosing a disease as the deciding case for software... It's kind of apples and oranges, and there are many other applications that are more central to the issue of software.

2. Why is it the job of the govt. deputy solicitor to uphold the political interests of the US of A rather than the legality of the issue at hand? (there is an opinion here that software patents help the USA in World Trade.... which
seems very dubious to me at any rate).

Once a case gets to the supreme court, legality isn't the question - whatever they decide is the law, so you aren't going to go waving a statute at them and telling them they're ignoring the legality of the issue. Instead, they're making a politically-influenced interpretation of Congress' intent in drafting the Patent Act.

3. How is it technically feasible, if at all, to make a ruling on the Business Methods case without influencing whether software can or cannot be patented?

"This decision shall be interpreted as applying solely to those methods and processes that may be feasibly performed without a computer."

And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.

I think the govt. (read deputy solicitor) seems very worried that many lawyers and patent powerhouses would come crashing down as a result of this ruling.

I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.

I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.

Actually it's the perceived value of their intellectual property rights that would disappear - and which would disappear for all of their competitors at the same time. Now the stock market would certainly freak out as they hate FUD and flee from it with money in hand to businesses with less FUD, but after the shake out value would return to those companies who have a sound business model and management.

Companies which only exist because of patents would have to create a real business out of their technology

I think the government is more concerned that Google, Microsoft, Apple, Cisco, Citrix, IBM, etc., etc., would come crashing down as a result of this ruling. Their stock prices certainly would, since your proposed course of action would eliminate billions of dollars of intellectual property rights in a puff.

Arguable. But even if you are right, it would be a pretty temporary devaluing of their stock, which would return to its normal level once it became clear that the value of the software was in its implementation, as well as marketing and integration with their other products, not just the novelty of their coding. I, for one, would take it as a great buying opportunity.

After all, no one is arguing that copyright on computer code should be abolished with the patents.

After all, no one is arguing that copyright on computer code should be abolished with the patents.

Yeah, but say you write a program in C and someone takes it and rewrites it in C++, or Java to Perl, etc. You have very little copyright protection in that new work. Your best bet is to claim it's a translation or a derivative work, but good luck proving that.

Who fucking cares? Why should you own something just because you were the first to do it? What a retarded thing to base government monopolies on.

It's like saying you can't run a construction business because all you can compete on is the quality of your work... "My competition can build roofs, and walls, everything I can!? How will I ever survive without a way to lockout all competition and force customers to deal with me?"

So write your damn program the way you'd attach drywall and get on with business. You

And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.

RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable? This appears to imply that execution time determines patentability: there exists a value n such that any novel algorithm that requires more than n operations is patentable and any algorithm that requires fewer is not. So what is n?

RSA with a shorter key can be done with paper and pencil. Did you mean that increasing key length makes an unpatentable algorithm patentable?

Currently? No. But this is one way the Supremes could limit a decision that invalidates in-your-head business methods and diagnostic methods while preserving software patents. As for how many calculations would be required? You could still leave the test as "feasible" and let that be a factual question for a jury.

"This decision shall be interpreted as applying solely to those methods and processes that may be feasibly performed without a computer."

And to forestall your answer "but all software could be performed with a pen, paper, and slide rule", the relevant word is feasible. Go decode a PGP message with a pen, paper and slide rule and come back when you're finished to describe how any software can feasibly be done manually.

Do you think that a (novel) business method for hedging risk in derivatives markets could f

Do you think that a (novel) business method for hedging risk in derivatives markets could feasibly performed without a computer? If not, adding that language would invalidate the very decision the court just made.

The court didn't just make a decision. This is oral arguments. The court's decision won't be out for another couple months. If you're referring to that statement you quoted, that was my hypothetical way to resolve this question.

Personally, I'd wager that actual implementation of the Bilski method would be a considerably more complicated and computationally intensive piece of software than PGP.

Oh, yeah? Here's claim 1:

A method for managing the consumption risk costs of a commodity sold by
a commodity provider at a fixed price comprising the steps of:
(a) initiating a series of transactions between said commodity provider
and consumers of said commodity wherein said consumers
purchase said commodity at a fixed rate based upon historical
averages, said fixed rate corresponding to a risk position of said
consumer;
(b) identifying market participants for said commodity having a counter-
risk position to said consumers; and
(c) initiating a series of transactions between said commodity provider
and said market participants at a second fixed rate such that said
series of market participant transactions balances the risk position
of said series of consumer transactions

A "series of transactions" can be as few as one, the fixed rate based upon historical averages is easy to calculate, and the rest is pretty straight forward. Now, sure, when you get up to several thousand transactions and lots of risk positions, it gets compl

If some turd law monetized air, arguments to get it out from under the grips of corporations so we didn't have to sign up with a Breathing Carrier or suffocate would all fall under the weight of your same arguments.

1. Why the govt. does not want to resolve the mess that is software patents, now
that a golden opportunity has been presented?

This case isn't really suitable because the Bilski claims didn't have any software. They were pure business method claims. My guess is that the Court would say the question of software patents is not an actual case or controversy here, so it can't be decided.

3. How is it technically feasible, if at all, to make a ruling on the Business
Methods case without influencing whether software can or cannot be patented?

Again, because there was no software in Bilski. The Court can very easily say that these kinds of pure business method patents without any ties to anything physical---not even a piece of software on a computer---are not valid without touching the que

This case isn't really suitable because the Bilski claims didn't have any software. They were pure business method claims. My guess is that the Court would say the question of software patents is not an actual case or controversy here, so it can't be decided.

One of the judges already said that software patents are linked because someone could use a program to write a business method. There are a number of flowchart, process and CRM programs out there where you could take a business process and turn it in

I'm going to have to respectfully disagree. Chief Justice Roberts questioned one of the attorneys about a footnote that brought up software patents, but none of the judges have "said" anything yet, because they haven't issued their ruling yet. There is no compelling reason that they have to address software in this case. The Federal Circuit didn't. They carefully avoided the issue. The Supreme Court could do the same and rule that bare business method patents are invalid without saying a single word ab

For better or worse, out legal system uses the existance of other cases to decide future ones. The Supreme Court does not decide cases at all. They don't hear facts. They almost always accept the findings of fact of the lower court, and solely address the applicaton of law. To many, that means they do not decide the case, but the issues. Were the issues handled right by the lower court? By the legislature? What reasoning did they use for thos

1. Why the govt. does not want to resolve the mess that is software patents, nowthat a golden opportunity has been presented?

For a large part of US history the judicial branch has stopped being a co-equal branch of government. Keyword: 'judicial deference'. It's a really big problem for people who enjoy a constitutional republic.

For a large part of US history the judicial branch has stopped being a co-equal branch of government.

You are right in that the Executive and Legislative branches are operating unconstitutionally. They take oaths to uphold the Constitution. Yet I've heard Clinton state that he thought something he was signing was unconstitutional. He signed it because part wasn't, but part was, and he wanted the part that was and was using the courts as a line-item veto. That's unconstitutional. He swore an oath to up

Regardless of whether they're "in the tank", I've noticed that this court tends to ask the most skeptical questions of the side they are considering ruling in favor of, at least when reported in the "anti-patent" media like Slashdot. It's more that they're trying to pin down the scope of their ruling rather than actually skeptical of the proposed arguments. Sometimes I think part of it is a cruel sense of humor toward the lawyers arguing before the court.

You are correct, and most courts act this way on difficult questions. The judges read the briefs and the trial transcripts (or have their clerks read them, really), figure out what they think the answer should be, then go into oral argument usually looking to solidify the position they've decided upon. Often this takes the form of, as you said, hammering on the side they favor to flesh out whatever theory they're currently working out in their heads. You'd be surprised, a lot of answers that seem "bad" have a nugget of a good legal theory, or at least something that brings parts of the theory together.

Of course, harassing attorneys with questions you know they can't answer sufficiently or forcing them to admit to something that makes them uncomfortable is also fun.

Could be. I haven't seen the transcript, so I'm stuck with what the media choose to highlight. I've seen enough rulings go the opposite of what early reports seemed to indicate that I'll hold onto my own skepticism, thank you.

How, exactly, is Justice Thomas "in the tank" for big business, and how, exactly, can "other ones... be bought"? There are of course the all-important campaign contributions. No, wait, federal judges are appointed for life. Scratch that. Well, Big Biz could lobby Congress to reduce their pay if they don't stay in line. Except that would be patently unconstitutional under Article III. But still, they need to kiss the right behinds to climb the ladder. Except they're already on the Supreme Court, so there's really nowhere to go. So are you suggesting that Monsanto and other big business interests outright bribe certain justices? Well now, I'm interested in what evidence you have to support this theory, because we have here the makings of one of the biggest scandals we've ever seen. Also, we have some pretty stupid justices who would jeapordize their careers and legacies for the sake of whatever bribe the baddies are willing to offer.

I often disagree with Supreme Court justices, but for better or worse, it's hard for me to find a reason for them deciding the way they do except they really believe that's the way things ought to be. Our clever little Constitution did a pretty good job of removing all other incentives. Now, they may be cozy with the interests they've sided with through the years, because we all love to be buddies with like-minded people, but nobody owns them. If Justice Thomas decided he wanted to put the smack down on Monsanto, there's nothing Monsanto could do to stop him.

I often disagree with Supreme Court justices, but for better or worse, it's hard for me to find a reason for them deciding the way they do except they really believe that's the way things ought to be.

That's a big part of the problem. They aren't there to decide if that's the way things ought to be, they are there to determine if the federal government has the constitutional authority to act on an issue. That's all.

So are you suggesting that Monsanto and other big business interests outright bribe certain justices? Well now, I'm interested in what evidence you have to support this theory, because we have here the makings of one of the biggest scandals we've ever seen.

I can't speak for this case but one week before issuing a ruling in Eldred v Ashcroft [wikipedia.org], Thomas accepted a seven figure deal with HarperCollins to publish his memoirs. HarperCollins is owned by News Corp which submitted an Amicus Curie brief in that very case. Oddly enough, Thomas ruled in News Corp's favor.

Most of the other justices have their memoirs published by independent academic institutions such as Harvard University Press but Thomas saw fit to sign a deal with a huge corporation just days before issuing a landmark ruling in their favor. Perhaps Thomas did it because HarperCollins was offering an order of magnitude more than his colleagues were getting for their memoirs, but that just screams of corruption to me.

This happened almost seven years ago. It seems the articles have faded from the internet. All I can find on it now is this Slashdot thread [slashdot.org]. I read the article it references back in 2003 and another one from Fox (yes Fox!) which said basically the same thing. Even though that thread was written in 2003 it is worth noting Thomas's memoirs were in fact published by Harper in 2007 [amazon.com].

A good source of background info for this case is provided in epside 1 of the Software Freedom Law Center's podcast http://www.softwarefreedom.org/podcast/2008/nov/25/0x01/ [softwarefreedom.org] It puts the case in perspective as to what software patents would be thrown-out under even the most optimistic Bilski rulings (ie: not ending all software patents, as we'd like to see).

My read is that the justices seem to be ok with software patents in principle but are leery of business method patents that are not tied to a device or that do not incorporate some form of technology.

Its too much to hope that this will kill software patents in one swoop.

Hopefully, even a ruling against "business method" patents will mean that a lot of software patents can be characterized as "implementing a buisness method on a standard computing device" and defeated on the grounds that the implementation could be done by any competent programmer.

Hopefully, even a ruling against "business method" patents will mean that a lot of software patents can be characterized as "implementing a buisness method on a standard computing device" and defeated on the grounds that the implementation could be done by any competent programmer.

That wouldn't defeat the patent. In fact, it's a requirement that the implementation claimed by the patent could be done by any programmer of ordinary skill, with the guidance of just the specification and drawings. Remember, the patent system is about public disclosure - you should be able to read any patent and (if you're skilled in that technology) be able to make or use the claimed device or method.

In fact, it's a requirement that the implementation claimed by the patent could be done by any programmer of ordinary skill, with the guidance of just the specification and drawings.

That's the standard for the level of detail required by the specification. But what if it can be shown that your "programmer of ordinary skill" could have taken a non-technical description of the "business method" and implemented it, using well-established techniques without the full specification?

Now, as long as there was FUD as to whether or not the method was patentable in itself, that wouldn't necessarily have helped. If that's clarified, it should be much easier to sift out the unpatentable "method" e

Email Marketing, So I will demand $0.25 per spam mail sent from every spammer for using my Idea.Pyramid Schemes, So when they are caught they will need to pay me royalty for breaking the law.Telemarking, They call me they will need to pay for violating my patent.

Lets just patent all the evil practices so it is just that more expensive to try to lie and cheat.

I'm guessing I'll be modded down for this, but I am genuinely curious about this. Why are people so against software patents? At their most basic elements, yes they are just basic math, but we are not looking at the most basic elements. The same could be said for art (just a few strokes of a brush at it's most basic level), or Music (just a few basic notes on a scale repeated over and over). The finished product gets you Mozart, and Monet.

Here I was ready to file a business model patent on "Receiving advertising revenue based on news stories that draw the most flames, sometimes resorting to dupes". Somehow I think there might be prior art, but I doubt the patent office would notice;)

There was one I found very interesting, from someone who was apparently present

"Oh you woulda loved where that sht was going. After several places in this part of the discussion there was a noticable shift in the audience as the ramifications of the fact that at least 2 justices were, from the mannerisms they were definitely using, and exasperation they were expressing, pretty fin pissed about software. And when I say "pretty fin pissed" well, you're just going to have to trust me if you weren't there. Some of the other justices on the other hand were just chillin in their chair, all bouncing around n stuff, not engaged hardly what so ever."

Even if you had a business method patent the chances are you'd still be defenceless in front of gigantic corporations who have the resources to just kick your arse up and down the legal system until you ran out of money.

They'll copy your model anyways, if you're small, you can't afford that many business patents (getting a patent is expensive, and litigating patents is also expensive and will put you out of business, unless you are successful against corporate army of lawyers).

Patents nowadays are very much for lawyers and large corporations BY lawyers and large corporations. They provide very little / no effective protection to the little guy.

Patents are worth only the amount of money you can field to litigate an infringement case over in most cases. A small player will fold if they're actually infringing when presented with a lawyer letter (they can't afford the litigation any more than you can, really...). But, a big player, something with a 10 or more figure market cap, would be in a position, if you're a startup, to mire you down and out-litigate you in most cases. It would be an expensive proposition without any good foreseeable prospect

Expensive yes, but even if a mega-corporation mires you down and causes you not to litigate, the patent doesn't go away. If someone steals an invention you patented, especially if they do it willfully, and makes a ton of money, you might be able to locate a lawyer willing to represent you on contingency (if you can prove willfulness you're awarded treble damages), or you can sell the patent with pockets deep enough to litigate.

I'm not going to pretend that patents are all good for the little guy all the ti

I'm not joking guys. We really planned on making our money on patenting our business model. We figured the big corporate bastards have made it impossible for tiny businesses like ours to make money and stay in business any other way so we'd patent our business model to protect ourselves from the giant behemoths. What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent! You have to *buy* me! That means I get one last pay-check before you cut me loose!

They take that away and now we're defenseless in front of gigantic corporations who have the resources to just wholesale copy our model.

And what if the big corporations go on patenting sprees and start patenting anything imaginable? Just like all patenting has come down to. Any idiot realises that patenting was never created to benefit "the small players." Really, conspiracy aside, but how much influence does small businesses contra large businesses have on politics and politicians? Do you think there is one single top politician who doesn't own stock in one or many large corporations? And it doesn't have to be a plot or a cartel, you can be a very honest politician but when that opportunity comes along the temptation to make a few extra hundred thousand can become too much. Also it does help if you can pretend you're doing it for "the small players."

And what if the big corporations go on patenting sprees and start patenting anything imaginable?

Well, first they have to invent it, which means it has to be new and nonobvious - so no patenting "filing a patent" or "earning money". And if they do invent something, they have to disclose it to the world and teach us all how to do it. And if they've really done something new and nonobvious and it's actually valuable and innovative, why shouldn't they have a limited period to exploit that invention? Particularly when, by it's very definition, it's limited, and 20 years later, everyone gets to do this new,

And what if the big corporations go on patenting sprees and start patenting anything imaginable?

Well, first they have to invent it, which means it has to be new and nonobvious - so no patenting "filing a patent" or "earning money". And if they do invent something, they have to disclose it to the world and teach us all how to do it. And if they've really done something new and nonobvious and it's actually valuable and innovative, why shouldn't they have a limited period to exploit that invention? Particularly when, by it's very definition, it's limited, and 20 years later, everyone gets to do this new, nonobvious, and valuable method?

I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.

Quit your trolling. You can patent general easy-to-think-of ideas which would then cover any real innovations. This is constantly being done today.

Well, first they have to invent it, which means it has to be new and nonobvious

Really? Since when?

Yeah, that's the theory, but in reality it doesn't work that way.

Hence my second paragraph:

I think most of the people who complain about the patent system, whether they realize it or not, are primarily concerned about the "new and nonobvious" part, rather than subject matter eligibility. We don't like it when someone gets a patent on a method of swinging on a swing, or investing in a hedge fund, or tickling a cat. But that's because those have either been done before, or are so freaking obvious that it's removing something from the public domain if you grant a patent on them... and that's a question of novelty and obviousness, not subject matter.

I'm not joking guys. We really planned on making our money on patenting our business model.

What will happen if you can't patent a business model is the behemoths who were in the same niche but slightly less profitable will look over and see you making money hand over fist and decide to copy your homework. What can you do? You're tiny. You're toast! But wait! I have a business model patent!

Great. You have a patent. And when your lawyer slaps that patent down on the table in front of the army of lawyers r

Seriously, his references includes a less than obscure radio broadcast that many older people might recognize over a modern day cartoon that they won't recognize? Seriously? When 9 individuals comment and 1 brings a reference in that a number of older people would recognize do you always behave like a twit?

What are you "The Second Horseman of Jumped the Shark" or perhaps "The Second Horseman rode by Perez Hilton"? Seriously, realize that you are not always going to be the demographic some comments are aimed at and...... get the hell off my lawn.

He's a Supreme Court justice. He doesn't talk about cars, and to make any pop culture reference at all is notable. What are you saying, because he doesn't watch TV that he's some kind of out-of-touch weirdo freak?

When talking of references, whenever anyone says "Professor Farnsworth" I think of the inventor of TV, not the funny cartoon character. But anyone who thinks different from you is weird and wrong, eh?

What are you saying, because he doesn't watch TV that he's some kind of out-of-touch weirdo freak?

No, when Scalia says things like "factual innocence is no reason not to carry out a death sentence properly reached" and argues that torture is not punishment and therefore not forbidden by the 8th amendment, THAT's when I say that he's some kind of out-of-touch weirdo freak.

Scalia didn’t really ever say: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

What Scalia did say was:“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

Now that might be objectionable, but it is likely factual (“no basis in text, tradition,

Oh, but they do mix. It's just that current patent law is utterly absurd. Just about any reasonable law can be stretched into one that harms society once taken to the extreme. It's like driving 5mph over the speed limit and getting slapped with a 6 figure fine. You can't turn around and say that speed laws and freedom don't mix.

(Yes I realize I'm responding to an AC troll. I wouldn't have done so if people didn't legitimately feel this way.)

Darn interventionist judiciary, bringing gov't involvement into business. They're tilting the playing field, making it more difficult for some business to succeed. When was the last time the gov't intervention ever benefited a company? They should stick to what they know and keep their noses out of the marketplace.